© The Indian Express Pvt Ltd
Tags:
Journalism of Courage
A five-judge Constitution Bench headed by Chief Justice of India (CJI) D Y Chandrachud and also comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and P S Narasimha, will hear a batch of petitions seeking legal recognition for same-sex marriage on Tuesday (April 18).
The court had referred the pleas to a Constitution Bench on March 13, saying questions of “seminal importance” were involved. A three-judge Bench headed by the CJI had said the submissions related to an interplay of constitutional rights and specific legislative enactments including the Special Marriage Act on the one hand, and the rights of transgender couples on the other.
The petition seeks the right to marry for same-sex couples, which brings with it a host of rights, privileges, and obligations that are “bestowed and protected by the law”.
The right to adopt, or have children by surrogacy or assisted reproductive technology, and automatic rights to inheritance, maintenance, and tax benefits are available only to married couples, who are also entitled to benefits under a host of employment statutes.
The state’s protection of a spouse continues even after death — a widow or widower, or their children, can avail of pension or compassionate appointments, the plea argues.
The petitioners have pointed out that they will not be able to avail of legally accrued benefits of laws such as The Transplantation of Human Organs Act, as it only allows near relatives to object to the use of a deceased’s body for therapeutic purposes or organ donation.
Also, Section 80 of the Income Tax Act, 1961, provides for deduction of certain sums for computing the total income of an assessee, when such sums are paid on behalf of a spouse.
“Marriage is one of the key ways in which society accepts, respects, and validates a couple and crucially, this is a social status which is bestowed by law,” the petition argues. By excluding same-sex couples from the realm of marriage, the law places a burden on same-sex couples that it is constitutionally impermissible, it says.
Equality is not achieved by the decriminalisation of sexuality alone; it must extend to all spheres of life, such as the home, workplace, and public places, the plea contends, making the case for structural changes along with attitudinal ones.
The petitioners have also sought for same-sex couples the benefits that legislation such as the Special Marriage Act, 1954, provide to opposite-sex couples. They have argued that they meet the eligibility requirements under Section 4 of the Act (Conditions relating to solemnization of special marriages between any two persons), and the only reason preventing their marriage was belonging to the same sex.
They have argued that non-recognition of same-sex marriage violates rights under Articles 14 (right to equality before law), 15 (right against discrimination on grounds of religion, race, caste, sex, place of birth), 19 (freedom of speech and expression), and 21 (protection of life and personal liberty) of the Constitution.
In two counter-affidavits filed on March 12 and April 16, the Centre has opposed the petitions and questioned their maintainability.
It has argued that if the court allows same sex marriage, it would amount to the “judicial creation of a social institution called ‘marriage’ of a different kind than contemplated in the existing law”. According to the Centre, only the legislature has the right to make such changes in the law.
“Marriage is not…confined to the private sphere. The regulation of marriage is very much an issue of acceptance by the society and as such ought to be debated only by the competent legislature, being a body, which is the repository of democratic representation and reflects the will of the people.
“This rationale is the very basis for state recognition of marriage, thus becomes the condition precedent for the State’s very existence. Given this fact, it is but natural that there would exist a Legitimate State Interest adhering to the existing concept of marriage and preventing its dilution except by legislation, if passed.”
Placing reliance on the Supreme Court’s judgments in Lata Singh vs State of UP (2006), Shafin Jahan vs Asokan KM (2018), and Laxmibai Chandaragi B vs The State of Karnataka (2021), the plea contends that an adult person has the right to marry a person of their choice under Article 21.
Contending that the SC has always protected inter-faith, inter-caste couples when they chose to marry, the plea draws attention to the 2017 ruling in KS Puttaswamy vs Union of India, where a nine-judge Bench said the rights of LGBTQ persons cannot be construed as being “so-called rights”, but are real rights founded on sound constitutional doctrine.
“They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom,” the 2017 ruling said.
A year later, in Navtej Singh Johar & Ors vs UOI, the SC held that members of the LGBTQ community are entitled to the “full range of constitutional rights including the liberties protected by the Constitution”.
“The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation,” the court said.
